Source: DCI, 10/06/2009

SAO PAULO - Under the premise of relieving the Judiciary and making the tax collection system more agile, accessible and effective, the government forwarded to Congress a package of projects that alter the current legislation. On the one hand, the proposals prepared by the Executive suggest improving the execution of active debt - estimated at R $ 650 billion - and on the other, relieving companies of tax debts.

The most controversial issue is due to the proposed tax transaction (PL No. 5082/09), which allows negotiation between the taxpayer and the federal tax authorities in the event of a conflict or litigation to extinguish the tax debt, in addition to providing for a reduction of up to % of accessory obligation fines; 100% of late payment fines and 50% of succumbence charges among other waivers.

“What is the criticism that this (bill) will raise? What is a disincentive to pay the tax? But whoever is able to transact is an exception, it will not be the rule ”, says Arnaldo Sampaio de Moraes Godoy, General Coordinator of Tax Affairs at the Attorney General's Office of the National Treasury (PGFN). According to him, this is the time for Brazil to create new things and the modern tax administration is made up of concessions. “The success of Refis and Paex are examples of the helpfulness of this”, he stresses. “The 2008 management report indicates that R $ 943 million was collected from Paex alone and R $ 91 million from Refis alone. This considering a collection of R $ 13 billion ”, he says.

Godoy argues that the proposed tax transaction brings benefits to taxpayers who have the rope around their neck and for whom the measures represent a new chance, as well as to the Union, which finds a way to collect it alternatively. “It is necessary to make some concessions”, he stresses.

Such concessions that the National Union of Physical Auditors of the Federal Revenue of Brazil (Unafisco) is totally contrary. "The transaction compromises the constitutional principles of supremacy and unavailability of the public interest," says Pedro Delarue, president of the entity. “It cannot be in the interest of the administration to transact, much less before the litigation is initiated, because no other interest is superimposed on that of the community,” he says.

For the president of Unafisco, the proposal sets a precedent for unilateral concession and by giving amnesty for fines and forgiveness to defaulters, the government produces a total disincentive to the voluntary payment of taxes.

Representatives of Unafisco today deliver around 30 suggestions for amendments to parliamentarians to be presented to the PL, which is being processed by the Chamber's Work Commission and whose deputy is Manuela D´Avila (PCdoB / RS). “The Union's position is that the project is difficult to amend, due to its infeasibility”, he adds.

According to the project, tax transactions are foreseen in four different cases: in a judicial process (excluding warrants and precautionary measures); transaction in civil insolvency, judicial recovery and bankruptcy; transaction for tax recovery and administrative transaction for accession.

In the case of the first hypothesis, Godoy recalls that 90% of court cases are mandamus, leaving the more restricted universe of tax foreclosure cases. For the second modality, the PGFN Tax Affairs coordinator says that the measure allows “a light at the end of the tunnel and prevents some bankruptcies”. The third modality is for that “subject who goes through tax problems and can go to the tax authorities to try to overcome a transitory situation of the financial economy crisis. The objective is to guarantee employment and keep the company alive ”, says Godoy. The fourth tax transaction option "will never happen", he says.

"The way it is, you can't continue," says Godoy. According to figures from the Brazilian Center for Judicial Studies and Research, São Paulo and Rio de Janeiro concentrate 50% of the country's tax foreclosures. The Federal Court holds 36,8% of the total tax foreclosures, which grow, according to the entity 20% per year.

The “mother” proposal of all Executive projects is the one that proposes changes to the National Tax Code (CTN). “In the first instance, it is these changes that will allow the other projects to move forward in a normative dialogue for the execution of new models of fiscal execution and tax transaction”, he adds.